B-159330, SEP. 12, 1966

B-159330: Sep 12, 1966

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TO BELL AND HOWELL COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED MAY 31. PROTESTING THAT THE CONTRACTING OFFICER SHOULD NOT HAVE REJECTED AS NONRESPONSIVE YOUR BID UNDER AIR FORCE INVITATION FOR BIDS IFB 33-657-66-200 DESPITE THE OMISSION OF CERTAIN TRANSPORTATION DATA. THE INVITATION PROVIDED THAT THE PROJECTION SETS WILL BE FURNISHED F.O.B. THE AWARDED QUANTITY OF THE PROJECTION SETS WILL BE CONSIDERED TO BE FOR DELIVERY IN ONE-THIRD SHARES TO TOBYHANNA. BIDDERS WERE REQUIRED TO GUARANTEE MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) AND TO GIVE CERTAIN DATA FROM WHICH TRANSPORTATION COSTS COULD BE COMPUTED. PROVIDES: "/1) EACH BID WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE F.O.B.

B-159330, SEP. 12, 1966

TO BELL AND HOWELL COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 31, 1966, PROTESTING THAT THE CONTRACTING OFFICER SHOULD NOT HAVE REJECTED AS NONRESPONSIVE YOUR BID UNDER AIR FORCE INVITATION FOR BIDS IFB 33-657-66-200 DESPITE THE OMISSION OF CERTAIN TRANSPORTATION DATA.

THE INVITATION, ISSUED FEBRUARY 14, 1966, SOLICITED BIDS ON MOTION PICTURE PROJECTION SETS ON INCREMENTAL QUANTITIES RANGING FROM 500 TO 2,000 AND ON MECHANICAL GAGES AND DATA. THE INVITATION PROVIDED THAT THE PROJECTION SETS WILL BE FURNISHED F.O.B. ORIGIN, AND THAT FOR BID EVALUATION PURPOSES, AND FOR NO OTHER PURPOSE, THE AWARDED QUANTITY OF THE PROJECTION SETS WILL BE CONSIDERED TO BE FOR DELIVERY IN ONE-THIRD SHARES TO TOBYHANNA; PENNSYLVANIA,SACRAMENTO, CALIFORNIA; AND LEXINGTON, KENTUCKY. TO ACCOMPLISH THE EVALUATION, BIDDERS WERE REQUIRED TO GUARANTEE MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) AND TO GIVE CERTAIN DATA FROM WHICH TRANSPORTATION COSTS COULD BE COMPUTED. THIS CONNECTION, THE "GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE)" CLAUSE IN AFPI 71-75, MADE A PART OF THE INVITATION BY PARAGRAPH "P" OF THE SCHEDULE, PROVIDES:

"/1) EACH BID WILL BE EVALUATED TO THE DESTINATION SPECIFIED BY ADDING TO THE F.O.B. ORIGIN PRICE ALL TRANSPORTATION COSTS TO SAID DESTINATION. THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) ARE REQUIRED FOR DETERMINATION OF TRANSPORTATION COSTS. BIDDER MUST STATE THE WEIGHTS (AND DIMENSIONS IF APPLICABLE) IN HIS BID OR IT WILL BE REJECTED. IF DELIVERED ITEMS EXCEED THE GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE), THE BIDDER AGREES THAT THE CONTRACT PRICE SHALL BE REDUCED BY AN AMOUNT EQUAL TO THE DIFFERENCE BETWEEN THE TRANSPORTATION COSTS COMPUTED FOR EVALUATION PURPOSES BASED ON BIDDER'S GUARANTEED MAXIMUM SHIPPING WEIGHTS (AND DIMENSIONS IF APPLICABLE) AND THE TRANSPORTATION COSTS THAT SHOULD HAVE BEEN USED FOR BID EVALUATION PURPOSES BASED ON CORRECT SHIPPING DATA. (ASPR 2-201/B) (XIII), MAY 1961)

"/2) AFPI FORM 28A, ATTACHED HERETO AND HEREBY MADE A PART HEREOF, MUST BE COMPLETED BY THE BIDDER.'

TWO BIDS WERE RECEIVED UNDER THE INVITATION. YOUR BID WAS $31,086.12 LESS THAN THE CONTRACT PRICE AWARDED TO VIEWLEX, INC., THE OTHER BIDDER. THE REASON THE AWARD WAS NOT MADE TO YOU WAS THAT IN PARAGRAPH 2.D. ON AFPI FORM 28A IN THE SPACE FOLLOWING "WEIGHT PACKED FOR SHIPMENT, IN POUNDS" AND "CUBIC MEASURE PACKED FOR SHIPMENT, IN CUBIC FEET," YOU INSERTED THE WORD "VARIOUS.' THIS WAS NOT CONSIDERED TO COMPLY WITH THE INTENT OF AFPI 71-75 AND THE CONTRACTING OFFICER THEREFORE REJECTED THE BID AS NONRESPONSIVE.

YOU PROTEST THE CONTRACTING OFFICER'S ACTION BECAUSE THE INVITATION WAS ON AN INCREMENTAL BASIS AND YOU SAY THAT YOU HAD NO WAY OF KNOWING THE NUMBER OF UNITS THE GOVERNMENT WOULD CHOOSE TO PURCHASE AND, THEREFORE, YOU COULD NOT PROVIDE A GUARANTEED SHIPPING WEIGHT. YOU INDICATE FURTHER THAT TRANSPORTATION COSTS FROM YOUR LOCATION IN CHICAGO, ILLINOIS, WOULD BE CHEAPER THAN FROM VIEWLEX'S LOCATION IN LONG ISLAND, NEW YORK. ADDITION, YOU STATE THAT IT IS NOT STIPULATED IN EITHER AFPI FORM 28A OR IN AFPI 71-75 THAT THE SHIPPING WEIGHT AND CUBIC MEASURE IS TO BE FOR AN INDIVIDUAL UNIT AND YOU INDICATE THAT IF THEY ARE TO BE FOR A SINGLE UNIT, SUCH INFORMATION IS AVAILABLE TO THE GOVERNMENT FROM PAST CONTRACTS. THE CIRCUMSTANCES YOU CONSIDER THE MATTER OF OMISSION OF SHIPPING WEIGHT AND CUBIC MEASURE AS A "MINOR IRREGULARITY" REFERENCING ARMED SERVICES PROCUREMENT REGULATION (ASPR) 2-405 AND 2-406.3. MOREOVER, YOU INDICATE THAT VIEWLEX HAS NOT MET THE DELIVERY REQUIREMENT ON A PRIOR CONTRACT.

THAT INCREMENTAL PRICING WAS REQUESTED AND BIDDERS WOULD NOT KNOW THE NUMBER OF UNITS WHICH WOULD BE CHOSEN FOR PURCHASE SHOULD HAVE INDICATED THAT THE GOVERNMENT WAS NOT EXPECTING BIDDERS TO FURNISH INFORMATION AS TO THE TOTAL WEIGHT AND MEASURE OF THE ENTIRE QUANTITY THAT MIGHT BE PURCHASED AND THAT ONLY THE WEIGHT AND SIZE OF AN INDIVIDUAL UNIT WAS BEING SOUGHT. VIEWLEX APPARENTLY ARRIVED AT THIS CONCLUSION, SINCE IT FURNISHED SUCH INFORMATION ON A UNIT BASIS. MOREOVER, AFLC FORM 872,"PRESERVATION, PACKAGING AND PACKING REQUIREMENTS," WHICH ALSO FORMED A PART OF THE INVITATION, INDICATED THAT THE "QUP," QUANTITY UNIT PACK, WOULD BE ONE UNIT TO A PACKAGE. ALSO, A STATEMENT AS TO THE SHIPPING WEIGHT AND CUBIC MEASURE OF AN INDIVIDUAL UNIT WOULD ENABLE THE GOVERNMENT, BY SIMPLE MULTIPLICATION, AFTER DECIDING UPON THE INCREMENT TO BE PURCHASED, TO COMPUTE THE COST OF TRANSPORTATION TO THE DESTINATION SHOWN. THEREFORE, IN THE CIRCUMSTANCES, WE MUST ATTRIBUTE THE FAILURE TO FURNISH APPROPRIATE TRANSPORTATION INFORMATION TO YOU RATHER THAN TO THE GOVERNMENT.

FURTHER, OUR OFFICE HAS HELD THAT, WHERE AN INVITATION REQUIRES A GUARANTEED SHIPPING WEIGHT TO BE FURNISHED FOR BID EVALUATION PURPOSES, THE FAILURE TO MEET SUCH A REQUIREMENT IS NOT A MINOR DEFICIENCY IN BID WHICH MAY BE WAIVED. RATHER, THE BID MUST BE REGARDED AS NONRESPONSIVE AND THE BIDDER MAY NOT BE PERMITTED TO SUPPLY THE INFORMATION AFTER BID OPENING. 38 COMP. GEN. 819. IN THAT CONNECTION, IT SHOULD BE OBSERVED THAT BY NOT FURNISHING GUARANTEED TRANSPORTATION INFORMATION, YOU ASSUMED A DIFFERENT OBLIGATION THAN RESPONSIVE BIDDERS WERE REQUIRED TO ASSUME, AND IT IS THEREFORE IMMATERIAL THAT YOUR PLANT MAY BE NEARER THAN VIEWLEX'S PLANT TO THE GOVERNMENT DEPOTS DESIGNATED FOR DELIVERY OR THAT THE INFORMATION ON WEIGHT AND SIZE MAY BE KNOWN TO THE GOVERNMENT FROM PRIOR CONTRACTS.

REGARDING YOUR ALLEGATION THAT VIEWLEX HAS NOT MET THE DELIVERY REQUIREMENT ON A PRIOR CONTRACT, OUR OFFICE HAS BEEN ADVISED THAT THE DELAY IS PARTLY ATTRIBUTABLE TO THE GOVERNMENT. IN ANY EVENT, A PRE AWARD SURVEY WAS CONDUCTED ON VIEWLEX PRIOR TO THE AWARD OF THE IMMEDIATE CONTRACT AND THE PROCURING AGENCY WAS SATISFIED THAT VIEWLEX IS A RESPONSIBLE CONTRACTOR.

ACCORDINGLY, THE REJECTION OF YOUR BID AND THE AWARD TO VIEWLEX APPEARS TO HAVE BEEN PROPER. YOUR PROTEST IS THEREFORE DENIED.